U.S. Solicitor General Elena Kagan is reported to be on the short list to replace Justice David Souter on the Supreme Court. If she were a Republican on the short list for a court opening, Senate Democrats would move heaven and Earth to turn a 1996 contretemps into a major scandal. On the evidence so far, such a political hit job would not be fair. What is fair, though, is to insist that not all the evidence is in, and to demand more answers.
As the Wall Street Journal's "Political Diary" reported May 21, Ms. Kagan was in the middle of Clinton White House deliberations that put a kibosh on legal action against a group of eco-terrorists in Oregon who were blocking some legal logging operations.
To quote from a House task force investigation in 1999, "these 'environmentalist' protesters erected barricades and other structures (out of timber) in the roadways and in the forest; they dug trenches and deliberately washed out the roadways in several areas, polluting the waterways downstream with runoff; they polluted the area with human waste; they built 'booby-traps' of trenches and sharpened metal spikes designed to maim intruders or damage vehicles; they chained and locked themselves to buried cement structures; and at least one protester was heavily armed."
The Forest Service and local law enforcement, with approval from the FBI, the local U.S. Attorney and federal marshals, were ready to move in against the demonstrators. Then, on June 12, 1996, a high-level group of White House officials, including Ms. Kagan, met and ordered that the arrest plans be aborted.
The House task force focused most on allegations that Ms. Kagan, then the domestic policy aide and associate White House counsel, had failed to investigate suspicions that a particular administration employee had leaked law enforcement plans to the eco-terrorists. Such a failure to investigate an illegal leak would have been a dereliction of Ms. Kagan's duty.
It's more important to know Ms. Kagan's stance on the bigger question of whether to abort the arrests and the role of political considerations in the decision. It was an election year for President Clinton, and environmentalist groups were a key part of his coalition.
Democrats had a field day accusing the Bush Justice Department of interfering with U.S. Attorneys for political reasons. Was Ms. Kagan involved in the same sort of political interference with federal and local law enforcement?
The Clinton White House made claims of various "privileges" to avoid providing some of Ms. Kagan's notes to the 1999 task force. Democrats filibustered to death the judicial nomination of attorney Miguel Estrada for the D.C. Circuit Court of Appeals merely because the Justice Department refused to turn over some of Mr. Estrada's notes - notes that are far more arguably protected from disclosure than were Ms. Kagan's, because Mr. Estrada's notes involved litigation strategies of the federal government itself.
To clear up matters, Ms. Kagan should demand that her 1996 notes be released. Eco-terrorists threatening seriously bodily harm to forest rangers clearly should have been brought to justice. If Ms. Kagan advised interfering with that justice, it would reflect badly on her judgment. If the notes show otherwise, Ms. Kagan - by all accounts a lady of great personal decency - should be vindicated of the suspicions once and for all.